their favourite measure. The consequences involved are too important to keep silence.

What, then, is this pre-emption principle? and how does it operate as a part of the existing land system? It is neither more nor less than to say to every one, when the Indian title is extinguished to a new portion of the public domain, that you may go, and search, and take all the choice parts, the fertile spots, the favourable localities, the town sites, or whatever other advantages any portion may possess, at $1 25 per acre; and that not to be paid till the lands are offered at auction, which may be many years thereafter. What, then, is its operation, but to give pick and choice of the public domain to the active and enterprising, who are best acquainted with the tract of country to which the Indian title is extinguished, with the speculating capitalists, who may choose to associate with them? It is like spreading out a large table, having a few choice and costly dishes intermixed with ordinary fare, and opening the door to the strong, and the few that may be nearest, to rush in and select the best dishes for themselves, before the others at a distance can enter and participate. And can we wonder, with such advantages, that there should be an active and powerful interest constantly at work to extinguish the titles of the Indians in rapid succession, without regard to the demand of our increasing population; to spread out table after table, that they may gorge their appetites on the choicest dishes, and slake their thirst with the most costly wines; leaving the ordinary fare, with the crumbs and bones, to the rest of the community?

But this is not all. After this picking and choosing, under the pre-emption, as it has heretofore operated, and which it is now proposed to make prospective and perpetual, comes the auction system; that is, the sales of the lands at vendue to the highest bidder. Nothing could be more just and equal, if fairly carried out; but it is notorious that the very opposite is the case under its actual operation. Instead of leaving the lands to be disposed of to the bids of individuals, according to their conception of the value of each tract, the whole is arranged beforehand, by combinations of powerful and wealthy individuals, to take the choice of the lands left by the pre-emptioners, and to run down all individual competition, so that no one can obtain what he wants without joining them; and thus another powerful interest is united with the former, to extinguish the Indian title-to spread out another table.

The next feature of the system so much lauded operates the same way-I refer to what is called the minimum price; that is, of fixing one invariable price of $1 25 an acre for all lands not sold at auction, without regard, as has been said, to quality, or the time it has been in market. The effect of this, with a quantity on hand to which the Indian title is extinguished, so far exceeding the demand of the community, is to sink the value of all the unsold land which has not been offered at auction to a price below the minimum, except a small portion of the best, which is annually purchased. Taking the aggregate of the whole of the lands in the new states, it would, according to its estimated present value by the Committee on the Public Lands, not be worth, on an average, more than 16 cents per acre. The result is, that no one is willing to give the minimum for the inferior or less valuable portion. Hence comes that great and growing evil, of occupancy without purchasing; which threatens the loss of the public domain, unless arrested by some speedy and decisive remedy. It has already extended far beyond what is thought of by those who have not looked into the subject, and is still rapidly progressing. I have taken some pains to ascertain to what extent it has extended in two of the states-Illinois and Alabama. It is probable that there are not less than thirty thousand voters in those states, residing on public lands as mere occupants, without title. In a single congressional district in Alabama, there are, by estimate, six thousand voters. But, as great as this evil is, it is not all. The fixed

minimum price co-operates with the pre-emption and auction systems to impel emigrants, especially of the more wealthy class, to turn from the states to the territories, where the land has been less culled over; and from the territories to the Indian lands, for the same reason; thus urging forward our population farther and farther, and driving before them the Indian tribes, unmindful of the dispensation of a kind Providence, which placed them as a restraint on the too rapid dispersion of our population.

There is another and powerful cause co-operating to the same result, which must not be passed unnoticed. I refer to the vast expenditures in the last twelve or fifteen years, in holding treaties with the Indians, and in extinguishing their titles, including reservations, and removing them to the West; equalling, in some instances, the fee-simple value of the lands, and in many others not much less. These immense expenditures, amounting, in the period specified, I know not to how many millions (not less, certainly, than forty or fifty), have made such treaties a great money-making affair, the profits of which have been divided between influential Indian chieftains and their white associates, and have greatly contributed not only to increase the force of the other causes in the too rapid extinguishment of Indian titles, but to diffuse widely the baneful spirit of speculation.

Such are the inherent defects of the system, and the results to which they have led, and must continue to lead, so long as it can find subjects on which to operate, if not remedied. The measure I have proposed would apply an efficient remedy, as far as the public lands in the new states are concerned. The combined action of graduation and pre-emption applied to lands which have been offered for sale, as provided for by the amendment I offered, would, in a few years, convert the occupants without title into freeholders; while, at the same time, it would tend powerfully to prevent the population of the new states from emigrating, and turn towards those the tide of emigration from the old states, and, to the same extent, counteract the too rapid spreading out of our population, and extinguishment of the titles of the Indians. But nothing can effectually remedy the defects of the system but a radical change. What that ought to be, would require much reflection to determine satisfactorily; but it seems to me, on the best reflection I can give it, that if, in lieu of public sales at auction, a system of graduation and pre-emption had been introduced from the first, fixing a maximum price sufficiently high when the lands are first offered for sale, and descending gradually, at short intervals of one or two years, to the present minimum price, and then, in the manner proposed in the measure which I have brought forward, giving the right of pre-emption at every stage, from first to last, to the settlers, it would have averted most of the evils incident to the present system, and, at the same time, have increased the revenue from the lands. It would have checked the spirit of speculation, concentrated our population within the proper limits, prevented the too rapid extinguishment of Indian titles, and terminated our ownership and administration of the lands in the new states, by disposing of them within a moderate period of time, and prevented most of the mischievous consequences which have been experienced. The introduction of such a change, or some such, founded on the same principles, in reference to lands not yet offered for sale in the territories, and the portion of the public domain lying beyond, and to which the Indian title is not yet extinguished, would, in combination with the measure I have proposed, go far to restore the system to a healthy action, and put a stop to the farther progress of the evil, and remedy, in a great measure, those already caused. I throw out these suggestions for reflection, without intending to propose any other measure, except the one I have already.

K K K

XXX.

SPEECH ON THE CASE OF M'LEOD, JUNE 11, 1841.

THE business before the Senate being the motion of Mr. Rives to refer so much of the President's Message as relates to our foreign affairs to the Committee on Foreign Affairs,

Mr. Calhoun said: I rise with the intention of stating, very briefly, the conclusion to which my reflections have brought me on the question before us.

Permit me, at the outset, to premise, that I heartily approve of the principle so often repeated in this discussion, that our true policy, in connexion with our foreign relations, is neither to do nor to suffer wrong, not only because the principle is right of itself, but because it is, in its application to us, wise and politic, as well as right. Peace is pre-eminently our policy. Our road to greatness lies not over the ruins of others, but in the quiet and peaceful development of our immeasurably great internal resources-in subduing our vast forests, perfecting the means of internal intercourse throughout our widely-extended country, and in drawing forth its unbounded agricultural, manufacturing, mineral, and commercial resources. In this ample field all the industry, ingenuity, enterprise, and energy of our people may find full employment for centuries to come; and through its successful cultivation we may hope to rise, not only to a state of prosperity, but to that of greatness and influence over the destiny of the human race, higher than has ever been attained by arms by the most renowned nations of ancient or modern times. War, so far from accelerating, can but retard our march to greatness. It is, then, not only our duty, but our policy to avoid it, as long as it can be, with honour and a just regard to our right; and, as one of the most certain means of avoiding war, we ought to observe strict justice in our intercourse with others. But that is not of itself sufficient. We must exact justice as well as render justice, and be prepared to do so; for where is there an example to be found of either individual or nation that has preserved peace by yielding to unjust demands?

It is in the spirit of these remarks that I have investigated the subject before us, without the slightest party feelings, but with an anxious desire. not to embarrass existing negotiations between the two governments, or influence, in any degree, pending judicial proceedings. My sole object is to ascertain whether the principle already stated, and which all acknowledge to be fundamental in our foreign policy, has, in fact, been respected in the present case. I regret to state that the result of my investigation is a conviction that it has not. I have been forced to the conclusion that the Secretary of State has not met the peremptory demand of the British government for the immediate release of M'Leod as he ought; the reasons for which, without farther remark, I will now proceed to

state.

That demand, as stated in the letter, rests on the alleged facts, that the transaction for which M'Leod was arrested is a public one; that it was undertaken by the order of the colonial authorities, who were invested with unlimited power to defend the colony; and that the government at home has sanctioned both the order and its execution. On this allegation the British minister, acting directly under the orders of his government, demanded his immediate release, on the broad ground that he, as well as others engaged with him, was "performing an act of public duty, for which he cannot be made personally and individually responsible to

the laws and tribunals of any foreign country;" thus assuming, as a universal principle of international law, that where a government authorizes or approves of an act of an individual, it makes it the act of the government, and thereby exempts the individual from all responsibility to the injured country. To this demand, resting on this broad and universal principle, our Secretary of State assented, and, in conformity, gave the instruction to the attorney-general which is attached to the correspondence; and we have thus presented for our consideration the grave question, Do the laws of nations recognise any such principle?

I feel that I hazard nothing in saying they do not. No authority has been cited to sanction it, nor do I believe that any can be. It would be no less vain to look to reason than to authority for a sanction. The laws of nations are but the laws and morals, as applicable to individuals, so far modified, and no farther, as reason may make necessary in their application to nations. Now there can be no doubt that the analogous rule, when applied to individuals, is, that both principal and agents, or, if you will, instruments, are responsible in criminal cases; directly the reverse of the rule on which the demand for the release of M'Leod is made. Why, I ask, should the rule in this case be reversed when applied to nations, which is universally admitted to be true in the case of individuals? Can any good reason be assigned? To reverse it when applied to individuals, all must see, would lead to the worst of consequences, and, if I do not greatly mistake, must in like manner, if reversed when applied to nations. Let us see how it would act when brought to the test of particular cases.

Suppose, then, that the British, or any other government, in contemplation of war, should send out emissaries to blow up the fortifications erected at such vast expense for the defence of our great commercial marts-New-York and others-and that the band employed to blow up Fort Hamilton, or any other of the fortresses for the defence of NewYork, should be detected in the very act of firing the train: would the production of the most authentic papers, signed by all the authorities of the British government, make it a public transaction, and exempt the villains from all responsibility to our laws and tribunals? Or would that government dare make a demand for their immediate release? Or, if made, would ours dare yield to it, and release them? The supposition, I know, is altogether improbable, but it is not the less, on that account, calculated to test the principle.

But I shall next select one that may possibly occur. Suppose, then, in contemplation of the same event, black emissaries should be sent from Jamaica to tamper with our slaves in the South, and that they should be detected at midnight in an assembly of slaves, where they were urging them to rise in rebellion against their masters, and that they should produce the authority of the home government, in the most solemn form, authorizing them in what they did: ought that to exempt the cut-throats from all responsibility to our laws and tribunals? Or, if arrested, ought our government to release them on a peremptory demand to do so?. And if that could not be done forthwith, from the embarrassment of state laws and state authorities, ought this government to employ counsel and to use its authority and influence to effect it? And if that could not accomplish its object, would it be justified in taking the case into their own tribunals, with the view of entering a nolle prosequi?

But, setting aside all suppositious cases, I shall take one that actually occurred that of the notorious Henry, employed by the colonial authority of Canada to tamper with a portion of our people, prior to the late war, with the intention of alienating them from the government, and ef

fecting a disunion in the event of hostilities. Suppose he had been detected and arrested for his treasonable conduct, and that the British government had made the like demand for his release, on the ground that he was executing the orders of his government, and was not, therefore, liable, personally or individually, to our laws and tribunals: I ask, Would our government be bound to comply with the demand?

To all these questions, and thousands of others that might be asked, no right-minded man can hesitate for a moment to answer in the negative. The rule, then, if it does exist, must be far from universal. But does it exist at all? Does it even in a state of war, when, if ever, if we may judge from the remarks of gentlemen on the opposite side, it must? They seemed to consider nothing more was necessary to establish the principle for which they contend but to show that this, and all other cases of armed violence on the part of one nation or its citizens against another, is, in fact, war; informal war, as they call it, in contradistinction from one preceded by a declaration in due form.

Well, then, let us inquire if the principle for which they contend, that the authority or the sanction of his government exempts an individual from all responsibility to the injured government, exists even in case of war.

Turning, then, from a state of peace to that of war, we find, at the very threshold, a very important exception to the rule, if it exists at all, in the case of spics. None can doubt that, if a spy is detected and arrested, he is individually and personally responsible, though his pockets should be filled with all the authority the country which employed him could give.

But is the case of spies the only exception? Are they alone personally and individually responsible? Far otherwise. The war may be declared in the most solemn manner; the invaders may carry with them the highest authority of their government; and yet, so far from exempting them individually, officers, men, and all, may be slaughtered and destroyed in almost every possible manner, not only without the violation of international laws, but with rich honour and glory to their destroyers. Talk of the responsibility of the government exempting their instruments from responsibility? How, let me ask, can the government be made responsi ble but through its agents or instruments? Separate the government from them, and what is it but an ideal, intangible thing? True it is, when an invading enemy is captured or surrenders, his life is protected by the laws of nations as they now stand; but not because the authority of his government protects it, or that he is not responsible to the invaded country. It is to be traced to a different and higher source the progress of civilization, which has mitigated the laws of war. Originally it was different. The life of an invader might be taken, whether armed or disarmed. He who captured an enemy had a right to take his life. The older writers on the laws of nations traced the lawfulness of making a slave of a prisoner to the fact that he who captured him had a right to take his life; and, if he spared it, a right to his service. To commute death unto servitude was the first step in mitigating the horrors of war. That has been followed by a farther mitigation, which spares the life of a prisoner, excepting the cases of spies, to whom the laws of war, as they stood originally, are still in force. But, because their lives are spared, prisoners do not cease to be individually responsible to the invaded country. Their liberty, for the time, is forfeited to it. Should they attempt to escape, or if there be danger of their being released by superior force, their lives may be still taken, without regard to the fact that they acted under the authority of their country. A demand on the part of their government for an immediate release, on the ground assumed in this case, would be regarded as an act of insanity.